Today, in the federal courthouse in Virginia, District Judge Henry Hudson heard oral arguments in Commonwealth v. Sebelius, one of twenty-three lawsuits challenging the new health-care law winding their way through the courts. Tonight, talking heads on cable news will debate the political impact and the legalese of the case. But what shouldn't go missing in the storyline is the effect that this lawsuit and others like it would have on consumers if they prove successful. It is time that even those who opposed passage of the original law asked whether the lawsuits are a responsible course of action.
The case being heard today, brought by Virginia Attorney General Ken Cuccinelli, asks for a clear and unambiguous remedy: an "injunction against the enforcement of... the PPACA as a whole." In other words, it asks the judge to issue a court order that would stop implementation of the entire health-care law.
If that actually happens, consumers are in for a world of trouble.
First, a range of protections that went into effect only last month would vanish. Insurance companies would once again be free to drop people from their rolls if they can find some unintentional paperwork error. They'd be free once again to deny coverage to children under 18. And the millions of young people just starting in the working world will lose the right to stay on their parent's plan until they turn 26.
Then, over the longer term, the consequences are even more serious.
Without the new health insurance exchanges coming in 2014, small businesses and individuals will have no way to pool their bargaining power, like big companies do. Without leverage to negotiate lower costs or better coverage, they will be stuck for the foreseeable future with take-it-or-leave-it deals from the insurance companies.
The impact does not stop there. New investments in preventive care will be eliminated. New incentives for doctors to deliver higher quality and less costly care will vanish. Scholarships and payment changes meant to make vital primary-care specialties more lucrative will be rolled back. And our health care system will keep accelerating down the same unsustainable path on which we have traveled for decades. We will treat people only after they get very sick using the most expensive treatments possible, rather than delivering primary and preventive care to keep people healthy and out of the hospital in the first place.
In short, this lawsuit, like the others working their way through the courts, would result in fewer protections in the marketplace in the short term and unchecked health-care costs over the long term.
These lawsuits are not the only path that critics of the new law could take today. The federal health care law is far from perfect, and much could be done to improve it. Even those who bitterly opposed the original law could play a truly constructive role. Under the law, state elected officials have substantial flexibility to design their own exchanges, and, a few years later, even generate their own whole-cloth reform plan, provided they meet the same cost, coverage, and quality goals. At the federal level, critics could push for legislation to enhance medical price transparency, a key reform that got lost amidst the partisan wrangling in Congress. And if they think they can present a comprehensive alternative that takes America forward on costs and consumer protections, there's room to debate that, too.
But instead, we see elected officials using taxpayer dollars on lawsuits that will only take us backwards. That is the last thing that the American consumer needs.